There has been much handwringing in recent days about the imminent likelihood that President Trump will "decertify" the Iran deal. But little of the media coverage has focused on the exact meaning and legal and political consequences of "decertification." Often "decertification" is associated with the US pulling out of the deal, or even with its possible demise. A careful read of the relevant US law, and the Iran deal itself (the Joint Comprehensive Plan of Action:JCPOA) shows that there's no reason to panic-yet. As I'll try to explain, much will depend on how other participants in the deal, Iran itself and the EU, decide to respond.
The notions of certification and decertification refer to provisions of the 2015 Iran Nuclear Agreement Review Act (INARA). This law requires that every 90 days the President endeavor to determine that Iran is in full compliance with the JCPOA and has not taken certain other actions that undermine its compliance with the deal. If the President determines that this is the case, then the President must certify. Otherwise, two courses of action are open to the President. He can simply fail to certify or he can certify that Iran is in material breach of the JCPOA, and the breach has not been cured. It is the latter that could probably most accurate be called "decertification."
Now the difficulty that faces Trump is the following: his Administration has already admitted that Iran is, so far, in full "technical" compliance with the deal. In this scenario, Trump would be in breach of the INARA if he fails to certify, unless it is the case that Iran has taken actions "including covert activities, that could significantly advance its nuclear weapons program". These would, logically, have to be activities that occurred or came to light in the last 90 days, i.e. after the previous certification that Iran was not, inter alia, engaging in such actions. Finally, Trump could rely on the notion in the IRANA of the lifting of sanctions no longer being in the national security interests of the United States to justify non-certification. But this much is clear from reading the INARA as a whole: the certification procedure in the INARA is not a mechanism whereby the President can exercise political judgment about the overall desirability of maintaining the Iran deal; instead the President is required to play a supporting role in Congress's oversight of the Iran deal, and in Congress's determination that lifting of sanctions continues to be justified.
This goes to the consequences under the legislation of the President's failure to certify. Contrary to the impression that some have based on media reports, these consequences do not include (at least not directly) US withdrawal from the deal, or even exercise of the snapback provisions in the JCPOA (these, as will be discussed, allow a single participant, whose concerns about Iranian non-compliance are not resolved through a dispute resolution mechanism, to require the reinstatement of the Security Council resolution requiring sanctions of all countries).
So what does follow if President Trump, as many expect him to do in the coming days, fails to certify? In brief, the failure to certify would allow the fast-tracking of legislation through Congress that reinstates US sanctions. So, in a word, it's up to Congress. There is no actual requirement that such legislation be tabled. Now there are doubtless, besides Netanyahu sycophant and arch- warmonger Tom Cotton, some legislators who still may not like the deal. But a significant number of those who voted against it at the time probably did so because of doubts about whether Iran would hold up its end of the bargain. And yet the JCPOA participants, even including the hostile Trump Administration, have all said Iran is in compliance. In sum, unless there is marked appetite in Congress for setting in motion the destruction of the Iran deal, Trump's failure to certify is largely meaningless (apart from it being taken as a signal by Tehran and other participants that the deal is shaky).
But let's say, for the sake of argument, that Trump's failure to certify were to trigger new legislation that reinstates US sanctions. To the extent to which these are sanctions that the United States agreed to remove in the Iran deal, it would be in breach of the JCPOA. In such a situation, Iran could trigger the dispute resolution mechanism in Article 36 of the JCPOA. If after exercising that option, Iran is still convinced that the US reimposition of sanctions is "significant non-performance" of its end of the bargain, then Iran would have the option of ceasing its own commitments in whole or in part, or withdrawing from the deal altogether.
The question is whether it would be in Iran's interests to take such steps in response to Congress re-imposing sanctions. Much of the benefit of the JCPOA to Iran comes from the renewed business ties with the EU and participants other than the US. If they hold to the deal and keep the sanctions off, it would not seem rational for Iran to scuttle it, despite new US sanctions that are in non-compliance with the JCPOA.
As far as attacking the Iran deal, the real "nuclear option" (not to make a bad pun), is to invoke snapback, the provision of the JCPOA that would force all the participants to bring back the sanctions required by the UN Security Council in its pre-Iran deal resolution. Snapback can be triggered where, after exhausting the specified dispute settlement process, a participant still has an “issue of significant non-performance” and so notifies the Council. The Council then is required to vote to continue the lifting of UN sanctions. In the absence of such a new Security Council resolution, the older resolution requiring sanctions snaps back. (Of course, the US, as a permanent member of the Security Council, could veto any new resolution, thus ensuring snapback.)
One question is whether under US law it is the President or Congress that ultimately decides concerning the invocation of snapback. A larger one is what options would be left in such a situation to salvage the Iran deal, given that, apart from Trump and Netanyahu, there is a huge global consensus that it’s been a good thing and would continue to be. To invoke snapback, the United States must, besides exhausting dispute settlement under deal, have a good faith belief, arguably, that there is an “unresolved issue… of significant non-performance” by Iran of its obligations under the JCPOA. Barring dramatic new evidence of violations, the EU and others might simply take the position that the United States is estopped from asserting “significant non-compliance” by the Administration’s own repeated determinations or admissions that in fact Iran is in technical compliance. These countries might thus say that a condition precedent for the older UN Security Council sanctions resolution snapping back has not been met, and therefore that they will not reinstate their own sanctions. Now, in theory, Congress might decide to (re-) impose secondary sanctions to punish foreign businesses that have dealings with Iran. That would probably lead to a confrontation at the WTO, and certainly to heightened tension with the US’s European partners. It is far from certain that Congress would want to take such a step, even if it ever got to the point of giving its blessing to the abuse of snapback to execute President Trump’s errant judgment that the Iran deal must go.
The bottom line: even if the President fails to certify the Iran deal in the coming days, its demise can be avoided-provided that the others in the room, so to speak, act like grown ups.
